Second District Court to Dismiss Claims Based on Unconstitutional Statute Provision
In Lindenbaum v. Realgy, the United States District Court for the Northern District of Ohio dismissed the plaintiff’s “robo-call” class action under the Telephone Consumer Protection Act (TCPA), based on the Supreme Court’s 2020 holding that a statutory exception for automated calls to collect government debts was unconstitutional. Because the statute was unconstitutional at the time of the alleged violations, the district court determined that it lacked subject matter jurisdiction and dismissed the lawsuit.
Originally enacted in 1991, the TCPA restricts almost all prerecorded sales calls to cell phones. In 2015, Congress amended the provision to allow prerecorded calls “made solely to collect a debt owed to or guaranteed by the United States.” 47 U.S.C. § 227(b)(1)(A)(iii). The 2015 provision was struck down in 2020 by the United States Supreme Court’s plurality decision in Barr v. American Association of Political Consultants, Inc. While the Supreme Court struck down the portion of the statute dealing with calls for government debt, it left the rest intact.
In Lindenbaum, the plaintiff brought a class action lawsuit alleging violations of the TCPA. Specifically, the plaintiff alleged that she received two prerecorded calls, one to her cellphone and one to her landline, and had not provided express written consent to receive these calls. The plaintiff argued that the severance of the unconstitutional provision should be applied retroactively. The defendants argued that the severance could be applied only prospectively, and that they should not be punished for acting “during a time when an unconstitutional content-based restriction existed.”
The Ohio District Court agreed with the defendants, finding that “the fact remains that at the time the robocalls at issue in this lawsuit were made, the statute could not be enforced as written. And a later amendment to a statute cannot be retroactively applied.” Therefore, the court held that any calls made between 2015 and 2020 – the time the government-debt exception was in play – could not be considered violations, since the entire TCPA was unconstitutional at that time. This ruling aligns with the Eastern District of Louisiana’s recent holding in Creasy v. Charter Communications, Inc., which similarly held that the TCPA class action could not proceed given the unconstitutional 2015 TCPA amendment allowing automated calls to collect government debts.
The rulings in Creasy and Lindenbaum are important, as they both have allowed for dismissal of claims brought under the now unconstitutional statute provision. As this issue continues to arise, it will be interesting to see whether courts continue to follow this line of reasoning.